The case stated that Miles Hardy made his last will and testament, and thereby devised lands and bequeathed specifically several slaves to each of his two children, Henry and Harriet. In the said will there is the following clause: "It is, however, my will and intention that if either of my children aforesaid, at their death, should leave no issue lawfully begotten, that the whole of my estate, both real and personal, should descend to the survivor." The testator appointed Christopher Duckett, executor of his will, who qualified and took upon *Page 202 himself the management of the estate. The executor died after making his will, and appointing William G. Duckett his executor, who qualified as such. Henry Hardy, one of the legatees under the will of Miles Hardy, filed his bill in equity against William G. Duckett as executor of C. Duckett, who had been executor of Miles Hardy, for an account of the estate of Miles Hardy; and there was a decree in his favor for the sum of $1,344.66, with interest. Henry Hardy agreed to take slaves in payment of the said decree, and the slaves, for which this action is now brought, were delivered over by William G. Duckett to him in part performance of this decree. These slaves formed no part of the estate of Miles Hardy, but were delivered (246) over as part of the estate of C. Duckett, in payment of the decree. Henry Hardy sold the slaves bona fide, and for a valuable consideration, to the defendant. Henry Hardy has since died without leaving issue, and Harriet, his sister, who has intermarried with Sutherland, now claims the slaves under the will of her father, Miles Hardy. The slaves mentioned in the plaintiff's declaration were not the property of Miles Hardy and therefore did not pass to the plaintiff, Harriet, on the death of her brother without issue, under the executory devise or bequest contained in her father's will. The slaves originally belonged to Duckett, and the value of them went as so much money in satisfying the decree that was obtained against Duckett as executor. The transfer of these slaves by Duckett to Henry Hardy, vested in the said Henry the absolute legal estate. The amount of the decree, perhaps, did belong to the plaintiffs, after the death of Henry without issue; and her interest in the said decree might have been secured to the plaintiff by the Court at the time it was rendered. But the Superior Court of Edgecombe was trying the question of legal property, and had no power to substitute the slaves that were rendered by Henry in satisfaction of that decree, for the money itself. We therefore think that the judgment rendered in the said Superior Court must be affirmed.
PER CURIAM. Judgment affirmed. *Page 203 (247)